We're at a Crossroads in Our Democracy

As should be obvious from the cavalcade of clowns currently coursing toward the federal judiciary, and from a Congress staffed entirely by replicants like the one that has replaced Lindsey Graham in the Senate, nothing is more important to the health of this republic than the unimpeded exercise of the franchise. It has been an obsession in this shebeen since it opened in 2011. We have tried to chronicle, as best we can, all the attempts to obstruct and to suppress the franchise that have cropped up since Barack Obama was swept into office by a new coalition of voters in 2008.

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(We also have tried to stay current on all the efforts to ratfck elections through technology, but that’s not our topic for today.)

The right of suffrage, Mr. Madison wrote in Federalist 52, “is very justly regarded as a fundamental article of republican government.” This is so self-evident that the entire history of the country has been charged with an almost constant effort to extend the franchise to groups whom Madison and his colleagues left out of the Constitution. It was an essential part of the “promissory note” that Dr. King said everyone had come to Washington to redeem in 1963. Two years later, President Lyndon Johnson, in the greatest speech given by an American president in my lifetime, sent the Voting Rights Act to Congress, saying, in part:

Our fathers believed that if this noble view of the rights of man was to flourish it must be rooted in democracy. The most basic right of all was the right to choose your own leaders. The history of this country in large measure is the history of expansion of that right to all of our people. Many of the issues of civil rights are very complex and most difficult. But about this there can and should be no argument: every American citizen must have an equal right to vote.

Even Malcolm X recognized the power of the vote, if not the good faith of many of the people who were married to the system within which it functioned. In a speech in Cleveland in 1964, he said:

These 22 million victims are waking up. Their eyes are coming open. They're beginning to see what they used to only look at. They're becoming politically mature. They are realizing that there are new political trends from coast to coast. As they see these new political trends, it's possible for them to see that every time there's an election the races are so close that they have to have a recount. They had to recount in Massachusetts to see who was going to be governor, it was so close. It was the same way in Rhode Island, in Minnesota, and in many other parts of the country. And the same with Kennedy and Nixon when they ran for president. It was so close they had to count all over again. Well, what does this mean? It means that when white people are evenly divided, and black people have a bloc of votes of their own, it is left up to them to determine who's going to sit in the White House and who's going to be in the dog house.

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The modern assault on the franchise largely has concerned itself with rolling back the promise of LBJ’s speech. A Supreme Court guts the very law of which LBJ was speaking and, to the surprise of approximately nobody, various states cobble together the modern equivalent of asking some inconvenient voter to recite the Constitution backwards. State legislatures elected during this new era of voter suppression get to work gerrymandering their states to guarantee their own power in a kind of perpetuity, both in the states and in the national government. It has been the very model of a modern major movement, and it has succeeded wildly almost everywhere it’s been tried. But, recently, and over the past couple of days, there have been refreshing signs of a positive backlash through which the promises of 1965 might live again.

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On Tuesday, a federal court in the newly insane state of North Carolina took a sledgehammer to the congressional districts drawn up by that state’s Republican-dominated legislature. The 191-page opinion, written by Judge James A. Wynn, Jr. (Marquette University Law, 1979. Ring out ahoya.), is a masterpiece of close reasoning charged throughout with undisguised legal contempt for the Republicans in the state legislature who acted, in Wynn’s felicitous phrase, “with invidious partisan intent.”

Moreover, the three-judge panel, for the first time in any federal court, ruled that purely partisan gerrymandering violated the Constitution in that it violated the First Amendment right of free assembly. This is an essential contention by the plaintiffs in two partisan gerrymandering cases that already have been argued before the Supreme Court. And a good deal of the smart money is betting that an appeals court will stay this decision until the Nine Wise Souls rule on the issue.

The Republicans in North Carolina made no bones about what they were doing. A previous map that gerrymandered the state by race was thrown out by another federal court; that was the one in which the court said that African-American voters were targeted “with almost surgical precision.” (Federal courts in North Carolina know how to leave a mark.) In 2016, when the state’s House of Representatives was debating the new map, Representative David Lewis, who ran the North Carolina House’s redistricting effort, said plainly:

“I acknowledge freely that this would be a political gerrymander, which is not against the law…I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country.”

Lewis was correct—at the moment, anyway. Partisan gerrymandering was “not against the law.” Yet. But this decision, and the decision of the Supreme Court to hear a case involving a similar law from Wisconsin last fall, indicates that the courts have become fed up with such obvious attempts to rig the game. No federal court wants to be tasked with drawing up legislative maps, but the maps in Wisconsin and North Carolina were so egregiously partisan that they did indeed rise to a First Amendment issue, and the courts felt they had no choice but to step in. As Judge Wynn said in his decision:

“A partisan gerrymander that is intended to and likely has the effect of entrenching a political party in power undermines the ability of voters to effect change when they see legislative action as infringing on their rights. We agree with Plaintiffs that a wealth of evidence proves the General Assembly’s intent to ‘subordinate’ the interests of non-Republican voters and ‘entrench’ Republican domination of the state’s congressional delegation.”

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On Wednesday, in Washington, the other prong of the assault on the franchise was brought before the Supreme Court. Once you devalue the votes of inconvenient constituencies by finagling the district maps, then you move on to finding ways to eliminate those votes entirely. In Ohio, one way they found was to penalize registered voters for not voting.

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At issue in Husted v. A. Philip Randolph was a state policy by which voters could be “purged” from the voter lists if they failed to vote in several consecutive elections, and then failed to respond to one notification sent out to them by the Ohio secretary of state’s office. The plaintiff was a veteran named Larry Harmon, who was purged after he didn’t vote in 2012 or in the 2014 midterms. Ultimately, this was a fight over a provision of the 1993 National Voting Rights Act, also known as the “Motor Voter” Law. Proponents of the Ohio system argued that the law permitted the kind of purge they conducted, as did the Help America Vote Act, passed in 2002, while opponents argued that the use of non-voting as a “trigger” to start the process of disenfranchisement was expressly forbidden by that same law.

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From the reports, it appears that the Court was at least sympathetic to Ohio’s argument that it was just trying to protect the “integrity” of its voter rolls. Both Justice Anthony Kennedy and, surprisingly, Stephen Breyer seemed to be leaning in that direction. At one point, Breyer asked of the plaintiff’s attorney:

"What's the state supposed to do?" Justice Stephen Breyer asked. "Every year, a certain number of people die; a certain number of people move to California; it has to figure it out."

However, Justice Sonia Sotomayor was dubious of Ohio’s contention that a law meant to make it easier for people to vote could be used to deny them the franchise altogether. She landed quite hard on Solicitor General Noel Francisco, and, yes, the administration* is siding with Ohio here.

General, could you tell me, there's a 24-year history of solicitor generals of both political parties under both -- Presidents of both political parties who have taken a position contrary to yours. Before the amendment and after the amendment. In fact, the Federal Election Commission, when it wrote to Congress with respect to the Help America Vote Act, took the position the old solicitor generals were taking. Everybody but you today come in and say the Act before the clarification said something different. Seems quite unusual that your office would change its position so dramatically. I might accept it if you thought the Help America Vote Act, in fact, clarified something that was ambiguous, but you're taking a very different position. You're saying even before that Act, it was clear you could do it this way.

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(Of course, Justice Sotomayor is mistaken if she believes that this kind of reversal is “unusual” for this administration*.)

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It’s 2017, and the right to vote should not be as embattled as it is. If there’s one thing that ought to be truly bipartisan, it’s that it should be easy to vote and that the polling place should not resemble a combination between a deli counter and an office of the DMV. As Mr. Madison went on to write in Federalist 52:

It was incumbent on the convention, therefore, to define and establish this right in the Constitution. To have left it open for the occasional regulation of the Congress, would have been improper for the reason just mentioned. To have submitted it to the legislative discretion of the States, would have been improper for the same reason; and for the additional reason that it would have rendered it too dependent on the State governments that branch of the federal government which ought to be dependent on the people alone.

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Of all the political commons, the vote is one of the few things that materially belongs to each and every eligible citizen, and barriers to eligibility should be as minimal as possible. Lose faith in the ballot and you're participating in a farce.

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